familypediawikiaorg-20200214-history
De facto
De facto is a Latin expression that means "of the fact" or "in practice" but not ordained by law. It is commonly used in contrast to de jure (which means "by law") when referring to matters of law, governance, or technique (such as standards), that are found in the common experience as created or developed without or contrary to a regulation. When discussing a legal situation, de jure designates what the law says, while de facto designates action of what happens in practice. It is analogous and similar to the expressions "for all intents and purposes" and "in practice" The term de facto may also be used when there is no relevant law or standard, but a common practice is well established, although not universal. For example, English is the most common language in the United States, but is not the official national language. Examples Standards A de facto standard is a standard (formal or informal) that has achieved a dominant position, as a tradition, or by enforcement, or market dominance. It has not necessarily received formal approval by way of a standardization process, and may not be an official standard document. In social sciences, it is a usual solution for a coordination problem.Edna Ullmann-Margalit: The Emergence of Norms, Oxford Un. Press, 1977. (or Clarendon Press 1978) De facto standard is the better choice into situations in which all parties can realize mutual gains only by making mutually consistent decisions. National languages Several de facto English-speaking countries, including the United Kingdom and Australia have no de jure official national language. In New Zealand, there are three official languages (English, Maori, and the local version of sign language). In the United States, twenty five states have declared English an official language, with Hawaii using Hawaiian and English as official languages. However, two US states also have de facto second languages: Spanish in New Mexico and French in Louisiana. Similarly, in the former Soviet Union, Russian was the official language de facto, but not de jure. Sweden is another example of a country with no language recognized de jure. Lebanon and Morocco are two more examples, where in both countries the official language is Arabic but an additional de facto language is considered to be French. Politics A de facto government is a government wherein all the attributes of sovereignty have, by usurpation, been transferred from those who had been legally invested with them to others, who, sustained by a power above the forms of law, claim to act and do really act in their stead. 30 Am Jur 181. Law Dictionary, James A. Ballentine, Second Edition, 1948, page 345. In politics, a de facto leader of a country or region is one who has assumed authority, regardless of whether by lawful, constitutional, or legitimate means; very frequently the term is reserved for those whose power is thought by some faction to be held by unlawful, unconstitutional, or otherwise illegitimate means, often by deposing a previous leader or undermining the rule of a current one. De facto leaders need not hold a constitutional office, and may exercise power in an informal manner. Not all dictators are de facto rulers. For example, Augusto Pinochet of Chile initially came to power as the chairperson of a military junta, which briefly made him de facto leader of Chile, but then he later amended the nation's constitution and made himself President, making him the formal and legal ruler of Chile. Similarly, Saddam Hussein's formal rule of Iraq is often recorded as beginning in 1979, the year he assumed the Presidency of Iraq. However, in practice his de facto rule of the nation began at an earlier date, as during his time as vice president he exercised a great deal of power at the expense of the elderly Ahmed Hassan al-Bakr. Another example of a de facto ruler is someone who is not the actual ruler, but exerts great or total influence over the true ruler, which is quite common in monarchies. Some examples of these de facto rulers are Empress Dowager Cixi of China (for son Tongzhi and nephew Guangxu Emperors), Prince Alexander Menshikov (for his former lover Empress Catherine I of Russia), Cardinal Richelieu of France (for Louis XIII), and Queen Marie Caroline of Naples and Sicily (for her husband King Ferdinand I of the Two Sicilies). Some notable true de facto leaders have been Deng Xiaoping of the People's Republic of China and General Manuel Noriega of Panama. Both of these men exercised near-total control over their respective nations for many years, despite not having either legal constitutional office or the legal authority to exercise power. These individuals are today commonly recorded as the "leaders" of their respective nations; recording their legal, correct title would not give an accurate assessment of their power. Terms like strongman or dictator are often used to refer to de facto rulers of this sort. The term de facto head of state is sometimes used to describe the office of a governor general in the Commonwealth Realms, since the holder of that office has the same responsibilities in their country as the de jure head of state (the sovereign) does within the United Kingdom. In the Westminster System of government, executive authority is often split between a de jure executive authority of a head of state and a de facto executive authority of a Prime Minister and Cabinet who implement executive powers in the name of the de jure executive authority. In the United Kingdom, the British Sovereign is the de jure executive authority, even though executive decisions are made by the Prime Minister and his Cabinet on the Sovereign's behalf, hence the term "Her Majesty's Government". The de facto boundaries of a country are defined by the area that its government is actually able to enforce its laws in, and to defend against encroachments by other countries that may also claim the same territory de jure. The line of control in Kashmir is an example of a de facto boundary. As well as cases of border disputes, de facto boundaries may also arise in relatively unpopulated areas when the border was never formally established, or when the agreed border was never surveyed and its exact position is unclear. The same concepts may also apply to a boundary between provinces or other subdivisions of a federal state. Similarly, a nation with de facto independence, like Somaliland, is one that is not recognized by other nations or by international bodies, even though it has its own government that exercises absolute control over its claimed territory. Other usages A de facto monopoly is a system where many suppliers of a product are allowed, but the market is so completely dominated by one that the others might as well not exist. (Similarly for related terms such as oligopoly and monopsony.) This is the type of situation that antitrust laws are intended to eliminate, when they are used. A domestic partner outside marriage is referred to as a de facto husband or wife by some authorities.Walker Lenore E.A. "Battered Woman Syndrome. Empirical Findings". Violence and Exploitation Against Women and Girls, November 2006, page 142. In Australia and New Zealand, de facto has become a term for one's domestic partner. It is a legally recognised relationship of a couple living together in Australian law, e.g. "This is my defacto, Rachel". This is equivalent to the term common-law husband or wife used in most other English-speaking countries. However, if the relationship is indeed recognized by law, then it would be de jure, and thus "de facto" is a misnomer. Countries sometimes receive de facto (informal) recognition from other countries which may lead to de jure (formal) recognition. de jure De jure (in Classical Latin de iure and not to be confused with soupe du jour) is an expression that means "of law", as contrasted with de facto, which means "in fact". The terms de jure and de facto are used instead of "in principle" and "in practice", respectively, when one is describing political or legal situations. In a legal context, de jure is also translated as "by law". A practice may exist de facto, where for example the people obey a contract as though there were a law enforcing it yet there is no such law. A process known as "desuetude" may allow de facto practices to replace obsolete laws. On the other hand, practices may exist de jure and not be obeyed or observed by the people. References Category:Definitions